july 21, 2016 motion for a preliminary injunction · for a preliminary injunction. in support...

1

THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH, SS. SUPERIOR COURT NORTH

Docket No. 216-2015-CV-859

Sanjeev Lath, Barbara Belware and

Gerard Dufresne

v.

Oak Brook Condominium Owners’ Association

July 21, 2016

MOTION FOR A PRELIMINARY INJUNCTION

Nowcomes the Plaintiffs in this matter and moves this Court to grant them this Motion

for a Preliminary Injunction. In support thereof the Plaintiffs contend:

1. Oak Broodefendant,that theinstant case allegesThis k

condominium Owners’ Association, recorded Plaintiffs’ conversations,

without their consent, during the Association’s business meeting, held

November 22, 2015.

2. During discovery, Plaintiffs’ came to be aware of another hidden

recording device that, that captures audio and video of residents in building

seven (7) of Oak Brook Condominium. See attached Exhibit A.

2

3. Upon further inquiry from the Property Manager, Zeny Rodgriguez,

she confirmed that the camera “was installed two years ago for the safety of

the building due to vandalism, urinating in the hall way and all the loud

noise.” See Exhibit B.

4. Rodriguez confirmed that the camera was capable of capturing

“noise”. In other words, the camera captured images and audio and it has

been capturing images and audio for two years, without the consent of the

residents.

5. In her email dated July 18, 2016, Rodriguez stated that there was

going to be a “board meeting today [July 18, 2016]. I am going to get more

information from the board.” Rodgriguez confirmed that, “one of the board

members. They mentioned to me the camera was installed two years ago.”

See Exhibit B.

6. On June April 15, 2015, in their reply to the Plaintiff’s Opposition to

the Defendant’s motion to dismiss Counts I and II of Plaintiff’s Second

amendment complaint, the Defendant argued (Rep. Pl. Opp. To Def. Mtn.

Dismiss ¶ 2), that “Oak Brook Board of Directors is not a different entity

3

than Oak Brook”. Defendant would be prohibited by the doctrine of judicial

estoppel to take any different stance.

“See State v. Luv Pharmacy, Inc., 118 N.H. 398, 403 (1978) ("A

corporation is a jural person, but not a person in fact. It is an

artificial creature, acting only through agents."); Sutton Mut. Ins. Co.

v. Notre Dame Arena, Inc., 108 N.H. 437, 441 (1968) (noting that "a

corporation can act only through its officers, agents and employees").

Plaintiffs' allegation that Oak Brook's board of directors tortiously

interfered with Plaintiffs' contract with Oak Brook therefore cannot

succeed because Oak Brook's board of directors is not a different

entity than Oak Brook”.

7. The doctrine of judicial estoppel prevents a party from asserting a

factual position that is directly contrary to another taken in the same or a

previous judicial proceeding. See 28 AM. JUR. 2D Pleading § 67 (2005);

Boyers, supra note 7, at 1245-46. It is intended to prevent litigants from

playing “fast and loose” with the courts and to protect the integrity of the

judicial process by preventing manipulation by “chameleonic litigants”

who, “deliberately shift positions to suit the exigencies of the moment.” See

28 AM. JUR. 2D Estoppel and Waiver § 74 (2005); Boyers, supra note 7, at

1245.

8. By their argument, the defendant agreed that the actions of the Board

are the actions of the defendant. Plaintiff Lath patiently waited for a

response to several questions that arose regarding his right to privacy in the

4

building. For e.g., Plaintiff Lath asked, “Did it capture images of people

coming in and out of the building? Did it capture audio?” See Exhibit C.

9. Rodriguez in her email (Exhibit B), had assured the Plaintiff the

answers to his questions, after the adjournment of the board meeting

scheduled for July 18, 2016.The meeting minutes for the meeting reflect the

discussion of the security camera installed at the Oak Brook Office, but do

not reflect any discussion of the camera in buildings that are hidden and

residents are not aware of. See Exhibit D.

10. All buildings at Oak Brook are secured that can only be accessed by

a key, that each resident has a copy of. Plaintiffs have an expectation of

privacy in the curtilage of their home.

.

11. In State v. Orde 2010 N.H. LEXIS 145 (30 Nov. 2010), the NH

Supreme Court evaluated the defendant’s expectation of privacy on his

deck and opined,

“We begin by addressing the trial court’s conclusion that the

defendant did not exhibit an expectation of privacy in the deck. The

defendant’s property is lined with trees. There is no evidence that the

deck could be seen from the road. The side of the deck facing the road

is lined with lilac bushes, further shielding the deck from passersby.

Although Corrado testified that from the side door of the home he

could see the deck steps and the existence of the deck, there is no

5

evidence that he could see whether anything or anyone was on the

deck. There is no path leading from the side door of the home to the

deck steps. Further, the lilac bushes near the deck would impede any

perceived route from the door to the deck.” State v. Orde 2010 N.H.

LEXIS 145 (30 Nov. 2010)

12. The reasoning in Orde resonates with this case. The Building seven

is secured, and inside of the buildings cannot be seen from the road. Once

Lath is inside the building, he has an expectation of privacy, that he would

not be recorded, or images of him entering and exiting the building is not

captured or his conversation with his friends in the hallways not recorded.

13. The instant case is a complaint alleging wiretapping, in violation of

NH RSA 570-A. NH Law requires consent of all parties to a conversation

for a conversation to be recorded or intercepted.

14. Plaintiffs are requesting this Court for a Preliminary Injunction,

ordering the defendant to remove any and all cameras and or recording

devices that have been installed inside the buildings, without the approval

of the owners, and cease and desist such reprehensible actions resembling

that of a “peeping tom”. These intimate details of people’s lives and the

private conversations between people captured constitute irreparable harm.

Once the words of a conversation are heard on the receiving end of these

camera or cameras, they cannot be “un-heard”. The inference drawn from

these conversations cannot be “un-drawn”.

6

15. The issuance of an injunction is an extraordinary remedy,

appropriate only where there is an immediate danger of irreparable harm to

the petitioner, and there is no adequate remedy at Law. Murphy v.

McQuade Realty, Inc., 122 N.H. 314, 316 (1982). “[T]he granting of an

injunction is a matter within the sound discretion of the Court exercised

upon a consideration of all circumstances of each case and controlled by

established principles of equity.” Unifirst Corp. v. City of Nashua, 130

N.H. 11,14 (1987)(quotation and ellipsis omitted). The petitioners have to

demonstrate, (1) a present threat of irreparable harm (2) there is no

adequate remedy at Law and (3) a likelihood of success on the merits and

(4) public interests would not be adversely affected if the Court granted the

injunction.

16. Plaintiffs have already argued that until the cameras are removed,

Plaintiffs and other residents’ private conversations continue to be recorded

using these camera or cameras. The Defendant has a set of keys to each

unit, and given the accelerated retaliation by the agents of the Defendant,

including assault of Plaintiff Lath (9th

District Court Case # 456-2016-CV-

124), it will not be hard to believe that Defendant installs cameras inside

Lath’s unit.

7

17. Plaintiffs intend to amend their complaint, to include the facts

surrounding this camera. Given that the manager has accepted its existence

of a camera and its capability of intercepting audio, the merits of Plaintiffs’

claim cannot be debated. Whether their actions are justifiable or lawful, are

a matter of Law. Therefore, Plaintiffs would more than likely succeed on

the merits.

18. Plaintiffs have tried reasoning with the Association, but their plea

has fallen on deaf ears. Plaintiffs have no adequate remedy at Law.

WHEREFORE, for the foregoing reasons, the Plaintiffs pray to this Hon’ble Court

to order the Defendant to:

a) remove any and all cameras and or recording devices that have been

installed inside the buildings.

b) Grant such other relief that this Court may deem proper.

8

Respectfully submitted,

__________________________________

Barbara Belware, July 21, 2016

__________________________________

Sanjeev Lath, July 21, 2016

__________________________________

Gerard Dufresne, July 21, 2016

9

CERTIFICATE OF SERVICE

I certify that a copy of this Plaintiffs’ Motion For Preliminary Injunction

including all attachments has been mailed to the Defendant’s Attorney Gary Burt

via email at [email protected].

__________________________________

Barbara Belware, July 21, 2016

__________________________________

Sanjeev Lath, July 21, 2016

__________________________________

Gerard Dufresne, July 21, 2016

mailto:[email protected]

DC25127

Typewritten Text

EXHIBIT A

Duffy & McKenna Court Reporters, LLC1-800-600-1000

In Re: Jason Manujian's Voice Mail Transcribed 7/15/2016 DUFFY & McKENNA COURT REPORTERS P.O. Box 1658 Dover, NH 03821-1658 (603) 743-4949 1-800-600-1000


2

1 R E C O R D I N G

2 Hey, Sanjeev, it's a -- Jason. Hey, I just

3 wanted to give you a quick call, you know, I -- I

4 want to talk to you a little about -- bit about

5 what's going on. So if you can give me a call

6 back, I'm pretty much available almost all day

7 long. So whenever you go back outside for a

8 cigarette or something like that, you just shoot me

9 a text, I'll have my phone on me and we -- I can

10 meet up or whenever you are.

11 Because, basically, man, I -- I -- I don't

12 feel comfortable at all about, you know, going

13 through the court systems and -- and putting my

14 name in the court and all this stuff, especially,

15 in -- you know, getting involved in any of this

16 because, you know, I -- I do have my -- my

17 family -- family to look after and everything like

18 that and I don't want any -- anything to happen.

19 And I understand the whole backlash thing

20 about, you know, you know, let you know and, you

21 know, you tell the court system and stuff like

22 that, but still, I -- I can't have any of that on

23 my shoulders as well, since -- since, you know, I


3

1 mean, if anything ever happened, you know, I would

2 never forgive myself and I couldn't live with it.

3 So I -- I -- I'm -- I'm very sorry, but I

4 would have -- I'm going to have to back out of

5 this, you know.

6 So if you want to give me a call, and we can

7 meet up and I can just chat with you for

8 face-to-face, I don't want to do this over the

9 phone but, you know, I figured I know, at least

10 talk to you about it and get you my input.

11 Because I called the court system and they

12 said, you know, if -- if this is going to trial and

13 stuff like that, they don't accept written

14 testimonies and -- and stuff like that. Everything

15 would have to be in person.

16 And, you know, if -- if that was the only

17 thing that you are trying to get her on was to the

18 camera that I found that was pointing at her unit,

19 then, you know, I understand but, you know, I -- I

20 just can't get involved. I -- I just can't do it.

21 So if you want to give me a call back, great,

22 and I'll chat with you then. Bye.

23 (End of recording.)


4

1

2 C E R T I F I C A T E

3 I, Camille M. Palladino-Duffy, a

4 Licensed Court Reporter in the State of New Hampshire,

5 do hereby state that the foregoing transcript is a true

6 and accurate transcription of the recorded media to the

7 best of my knowledge, skill, ability and belief.

8

9

10

11

12

13

14

15 __________________________

16 Camille M. Palladino-Duffy LCR No. 105, RPR

17

18

19

20

21

22

23

DC25127

Typewritten Text

EXHIBIT B

Sanjeev Lath <[email protected]>

Fwd: Min-U-Script Files For: Jason Manujian's Voice Mail

Sanjeev Lath <[email protected]> Mon, Jul 18, 2016 at 7:22 PMTo: [email protected]: Jerry 1 <[email protected]>, [email protected]

Atty Burt,

Can you please ask your client to preserve all evidences, including camera, receipts, media, storage, drives that are part of the camera referred in this email.

Sanjeev---------- Forwarded message ----------From: >[email protected]<Date: Mon, Jul 18, 2016 at 3:59 PMSubject: Re: Min-U-Script Files For: Jason Manujian's Voice MailTo: "Bisson, John" <[email protected]>, "Lath, Sanjeev" <[email protected]>

Good afternoon, We have a board meeting today. I am going to get more information from the board. I did speak with one of the board members. They mentioned to me the camera was installed two years ago for the safety of the building due to vandalism, urinating in the hall way and all the loud noise. I don't have much detail on the date that it was installed. I will gather some more information at tonight meeting.

ThanksZeny

From: "John F. Bisson" <[email protected]>To: [email protected]: Monday, July 18, 2016 2:15:20 PMSubject: RE: Min-U-Script Files For: Jason Manujian's Voice Mail

Zeny,

Where are the cameras and who put them up? If they are in common areas, we need to discuss as soon as you can.

John

Page 1 of 4Gmail - Fwd: Min-U-Script Files For: Jason Manujian's Voice Mail

07/21/2016https://mail.google.com/mail/u/0/?ui=2&ik=98c0f68f10&view=pt&search=sent&msg=15...

DC25127

Highlight

John F. Bisson

CRONIN BISSON & ZALINSKY, P.C.

BARRISTERS TITLE & CLOSING SERVICES

722 Chestnut StreetManchester, New Hampshire 03104Office: (603)624-4333Direct: (603)782-3938

STATEMENT OF CONFIDENTIALITY

This e-mail contains privileged and confidential information. It is intended only for the recipient(s) listed above. Any unauthorized distribution or copying of this message is prohibited. If you received this transmittal in error, please notify us immediately by reply e-mail and delete it from your files. Thank you.

From: [email protected] [mailto:[email protected]] Sent: Monday, July 18, 2016 8:36 AMTo: Bisson, John; Klardie, Chris; Vallee, Cheryl; Taylor, Patty; Jespersen, David; Morey, BillSubject: Fwd: Min-U-Script Files For: Jason Manujian's Voice Mail

Good Morning everyone, here is an email I received from Mr. Lath.

Thanks

Zeny

From: "Sanjeev Lath" <[email protected]>To: [email protected]: Friday, July 15, 2016 6:26:21 PMSubject: Fwd: Min-U-Script Files For: Jason Manujian's Voice Mail



I would like to bring to your attention how people feel unsafe in the community. Attached is a transcript of a voicemail left by jason manugian who rents a unit in building 7

Additionally there are cameras on trees in front of buildings which is a common area that were installed by betty Mullen of unit 701

Could you please investigate and please let me know if they have been taken down .

I will be forwarding this transcript and recording to the police department because he sounds very scared for the well being of his family if he testified in pending L itigations

---------- Forwarded message ----------From: "Camille Duffy" <[email protected]>Date: Jul 15, 2016 5:26 PMSubject: Min-U-Script Files For: Jason Manujian's Voice MailTo: <[email protected]>Cc:

Hello,

Attached are the Individual file(s) for:

Matter: Jason Manujian's Voice Mail

PDF and ASCII File(s) included are:

Full Size Page Image Transcript: Manujian Voice Mail_F.pdf

You have a credit on your account. Should we deduct the cost of thistranscription ($50.00) from that account?

Please let me know if you have any problems with any of the files, or if youhave any questions.

Sincerely,

Camille M. Palladino-Duffy

Duffy & McKenna Court ReportersP.O. Box 1658Dover, NH 038211-800-600-1000Billing and Production: [email protected]



Scheduling: [email protected]

-- Sanjeev Lath7 Northbrook Dr Unit 710Manchester NH 031026034614936

Statement of Confidentiality

The information contained in this electronic message and any attachments to this message may contain confidential or attorneyclient privileged information and is intended for the exclusive use of the addressee(s). Please notify Sanjeev Lath at [email protected] if you are not the intended recipient and destroy all copies of this electronic message and any attachments.



DC25127

Typewritten Text

EXHIBIT C

Sanjeev Lath <[email protected]>

Re: Min-U-Script Files For: Jason Manujian's Voice Mail

Sanjeev Lath <[email protected]> Tue, Jul 19, 2016 at 8:06 AMTo: [email protected]: "Bisson, John" <[email protected]>

Zeny,

Was the police notified? If you have a case # can you please provide that?Which Board Member or members knew about this?Was there a notice put out regarding urination and vandalisms?Is there is a reason why it was "hidden" from the residents of building 7 for two years?Did it capture images of people coming in and out of the building?Did it capture audio?

On Mon, Jul 18, 2016 at 3:59 PM, >[email protected]< wrote:Good afternoon, We have a board meeting today. I am going to get more information from the board. I did speak with one of the board members. They mentioned to me the camera was installed two years ago for the safety of the building due to vandalism, urinating in the hall way and all the loud noise. I don't have much detail on the date that it was installed. I will gather some more information at tonight meeting.

ThanksZeny

From: "John F. Bisson" <[email protected]>To: [email protected]: Monday, July 18, 2016 2:15:20 PMSubject: RE: Min-U-Script Files For: Jason Manujian's Voice Mail

Zeny,

Where are the cameras and who put them up? If they are in common areas, we need to discuss as soon as you can.

John

John F. Bisson

CRONIN BISSON & ZALINSKY, P.C.

Page 1 of 4Gmail - Re: Min-U-Script Files For: Jason Manujian's Voice Mail


EXHIBIT D

july 21, 2016 motion for a preliminary injunction · for a preliminary injunction. in support...

Documents